By: Rou Jing Wei
The clarion call for the separation of the Attorney General (AG) and Public Prosecutor (PP) roles in Malaysia resonates with a broader global narrative of justice system reform. The initiative, championed by the Institute for Democracy and Economic Affairs (IDEAS), aims to realign Malaysia’s prosecutorial functions with international benchmarks of independence and transparency, akin to models in Canada and the United States.
Minister in the Prime Minister’s Department for Law and Institutional Reforms, Datuk Seri Azalina Othman Said, has voiced a firm commitment to this paradigm shift. “The separation of the AG and PP roles is more than a mere restructuring; it is a commitment to uphold the rule of law, ensuring that our legal processes are not just impartial, but are perceived to be so by the public. We are dedicated to seeing this process through, cognizant of its profound implications for our democracy,” she stated.
Her commitment is a testament to the government’s understanding of the need for an independent judiciary free from the appearance of political bias. The AG, as the chief legal advisor to the government, and the PP, as the impartial arbiter of justice, must not only operate independently but must also be seen as doing so to maintain public trust in the legal system.
This pivotal change, however, is met with a slight reticence from the civil service. Change is often perceived as disruptive, and the reluctance from civil servants to embrace this reform is indicative of a broader discomfort with altering entrenched systems. The inertia is not just about disrupting the status quo; it is also about fear of the unknown and of untested waters that the proposed amendments might navigate.
Civil society, spearheaded by voices such as BERSIH, calls for swift and decisive action, holding the Unity Government to its reform promises. Their argument centres on the need for a legal system that upholds the democratic pillars of governance and the rule of law, free from the fetters of political interference.
Experts and organizations like Transparency International Malaysia (TI-M) have strongly advocated for the separation of the Attorney General (AG) and Public Prosecutor (PP) roles to bolster the independence of the judiciary. TI-M emphasizes that the current structure in Malaysia, where the same individual holds both the AG and PP positions, significantly undermines the impartiality and fairness of the criminal justice system.
This concern is particularly acute given the AG’s accountability primarily to the prime minister, leading to potential conflicts of interest in high-profile cases. TI-M’s observations reflect a growing global consensus on the need for distinct separation in these roles to ensure justice is administered without bias or political influence.
The global perspective suggests that the separation of these roles can lead to a more effective legal system. In Canada, for instance, the appointment of the Director of Public Prosecutions as an independent entity has been pivotal in ensuring that prosecutorial decisions are made without political influence, a move that has fortified public confidence in the judiciary.
The model practiced in the United Kingdom is often cited as a benchmark. In the UK, the Attorney General does not interfere in the daily operations of the Crown Prosecution Services, which functions as an independent government branch. This separation ensures that prosecutorial decisions are made free from political meddling. TI-M suggests that Malaysia could benefit from a similar separation, where the position of the PP is answerable to Parliament rather than the Executive arm of the Government.
This reformation, TI-M argues, would establish a system of checks and balances, ensuring that decisions are made impartially, transparently, and in the nation’s best interest, devoid of any political affiliations.
In an assertive step towards legal reform, Azalina has announced the establishment of two pivotal task forces. This development marks a proactive commitment by the Malaysian government to ensure a well-informed and comprehensive approach towards the separation of the Attorney-General Chambers (AGC) and the public prosecutor’s office.
The formation of these task forces follows a collaborative agreement with the Special Select Committee on Human Rights, Elections, and Institutional Reform, signalling a concerted effort between various branches of the government and legal bodies.
The first of these, the Special Task Force for Comparative Studies, will be spearheaded by Azalina herself, alongside representatives from the Special Select Committee, members of the opposition bloc, the AGC, and BHEUU. Their mandate is to conduct an extensive, evidence-based study of practices in countries such as England, Australia, Canada, and Kenya.
This international research is aimed at understanding global best practices that go beyond the data available in public domains. The goal is to integrate these insights into Malaysia’s context, ensuring that the nation’s legal reforms are in line with successful international standards.
Navigating this reform in Malaysia requires a cultural shift in the legal community and beyond. It is not enough to amend the Federal Constitution; there must be a concerted effort to implement these changes in spirit, not just in letter. The reform is not merely a procedural update; it is a reaffirmation of the nation’s commitment to justice and the fundamental principle that the law is above politics.
In a significant move signalling a blend of commitment and caution, Prime Minister Dato’ Sri Anwar Ibrahim has emphatically reaffirmed the Unity Government’s resolve to separate the roles of the Attorney-General and Public Prosecutor.
However, in a pragmatic tone, he cautioned that this pivotal reform cannot be expedited due to its intricate nature and substantial financial implications. The Prime Minister underscored the necessity of a two-thirds parliamentary majority for this legal overhaul, highlighting the reform’s complexity and scale. Anwar’s remarks encapsulate a careful balancing act, underscoring the government’s methodical approach towards a transformation that, while crucial, demands meticulous planning and broad consensus.
In light of these discussions, the Unity Government’s role becomes critically important.
It is tasked with not just drafting and passing laws but also with shepherding the nation through this transition with sensitivity and foresight “This reform agenda is important in ensuring stronger democratic governance and improving the administration of law in line with the unity government’s commitment to ensure good administration, legal systems and governance,” Azalina further emphasized.
In conclusion, the reformative journey that Malaysia embarks upon is one laden with challenges, both ideological and practical. The hesitancy, while not unfounded, must be addressed through meticulous planning, open dialogue, and a gradual yet firm transition. As Malaysia continues to chart this course, the commitment echoed by the Minister of Law, backed by the Prime Minister will be pivotal in achieving a judiciary that is independent in both function and perception, fortifying the nation’s democratic fabric for years to come.
-Senior Independent Researcher